Doping and Arbitration in the time of Covid

The global public health emergency has caused the cessation of ‘in-person’ hearings at courts and tribunals all over the world. Until business as normal is resumed, or the new abnormal can be identified, here is a review of some covid developments and immediately pre-covid decisions.

Athletics Integrity Unit (‘AIU’)

The AIU conducts anti-doping testing in more than a hundred countries around the world. One might have been forgiven for thinking that, given the near complete cessation of competitive sport (first came the football, finally fell the Tokyo 2020 Olympics), the immediate need for anti-doping controls had diminished.

However, on 26 March 2020, while recognising that, “there is no doubt that our anti-doping program will be severely disrupted in the short term”, and noting that, “stringent hygiene and safety protocols will be in place for any test that is conducted”, the AIU made clear that, “World Athletics Registered Testing Pool athletes must continue to fulfil their ‘whereabouts’ obligations”.[1]

World Anti-Doping Agency (‘WADA’)

On 26 March 2020, WADA published its first Code Compliance Annual Report[2].

Key take-aways include:

Over 3,000 corrective actions were implemented in 2019 with testing identified as the main source of non-conformities.

Significant, high-profile, WADA-led investigations have contributed to a number of compliance activities … [i]n particular, the Russian investigation has required an unprecedented amount of human and financial resources.

A clear link between improving the quality of testing programs and financial resources has been identified. A better understanding of costs associated with quality testing programs is required to assist Signatories to increase their budgets and resources.

The Court of Arbitration for Sport (‘CAS’)

CAS has drawn stumps / emptied the pool for any ‘in-person’ hearings until, at least, 1 May 2020 but work continues:

“depending on the circumstances of each individual case, the arbitrators and parties are encouraged to conduct hearings by video-conference or to cancel them (final award on the basis of the written submissions)”.[3]

In addition, CAS has provided a mechanism for limited extensions of time for the submission of certain filings. Critically, there is no such extension for the filing of any statement of appeal.

In 2019, the CAS Code was adapted, pursuant to art.6 of the ECHR, to provide for public hearings “at the request of a physical person who is party to the proceedings”. Previously, the agreement of all parties was required. The implementation of the new provision was not long in coming[4].

In Autumn 2018, Chinese swimmer Sun Yang had refused to allow a WADA blood sample collection process to be completed and then took matters into his own hands by destroying a blood container, tearing up the doping control form and refusing to let the doping control officer leave his house with the blood samples.[5]

On 15 November 2019, the first CAS public hearing to be live-streamed on the world wide web, was held in relation to the WADA appeal against Sun Yang for what was his second doping violation.

On 28 February 2020, the CAS panel delivered its arbitral award[6]. The Panel found that Sun Yuan failed to establish that he had a compelling justification to act as he did and forego the doping control, adding:

“at no point did the Athlete express any regret as to his actions, or indicate that, with the benefit of hindsight, it might have been preferable for him to have acted differently. Rather, as the proceedings unfolded, he dug his heels in and, eventually, sought to blame others for the manifest failings that occurred”.

The Panel’s sanction was an eight-year period of ineligibility, noting that, whilst harsh:

“the violation committed by the Athlete is … all the more serious because following his first anti-doping rule violation, the Athlete should have been even more careful in seeking to avoid a second”.

Sport Resolutions

Sadly, Sport Resolutions has cancelled its annual conference until, probably, Autumn 2020. However, they have not removed all the stumps and have only half emptied the pool for any ‘in-person’ hearings, stating that:

At Sport Resolutions our highest priority is to ensure the safety and well-being of our guests and staff. We are closely monitoring how the coronavirus pandemic develops across the globe and have taken steps to protect the health of individuals by minimising in person hearings and/or meetings. Sport Resolutions has been using video conferencing and e-filing facilities for more than two years now to conduct hearings and proceedings, and we are therefore very confident that these established processes will allow us to continue operating effectively.[7]

UK Athletics and Nike ‘Oregon Project’

Meanwhile, the controversy surrounding the extent of UKA’s disclosures in relation to its process and findings continues.

On 20 March 202, John Mehrzad QC’s independent report into UK Athletics (‘UKA’) handling of issues around Nike Oregon Project [8] was published. The report states that:

“UKA was informed by USADA that the Internal Review should not be published. Contributors to the Internal Review were also guaranteed confidentiality. Moreover, confidential medical data was analysed by experts as part of the Internal Review, which cannot be disclosed more widely … the substance of the Internal Review has not, by necessity, been shared more widely”.

On 21 March 2020, UK Anti-Doping issued the following statement:

“Following the release of [the UKA report and] the decision to publish the Executive Summary of the original internal review that was conducted in 2015 by UKA’s Performance Oversight Committee (POC). We have repeatedly requested that UK Athletics share this POC review with us in its entirety as there could be information included that is of interest to us … only an edited PowerPoint summary of this report has been shown to us … We now call again on UKA to handover this Review in full, including the associated supporting reports and documents”.[9]

Legal

Covid-19

Chambers is adopting a “business as usual” approach during this difficult period but all members of chambers, clerks and administration will be operating safely and efficiently from home save for court appearances.